DBS Checks – separating fact from fiction

by on June 24, 2017 in Youth and Community

It is common for people to be required to complete a DBS check as part of an application to work with young people or with ‘vulnerable adults’. (And often for roles which only have a tangential relationship with young people; for example this author was asked to complete one for a contract role working on software for the education market). [1] There seems to be a wide variety of roles for which such checks are demanded. But – are they legally requiredOr is it that the law permits employers to require them? Are people ‘eligible’ for a check or is check a mandatory requirement on the employer?

The law surrounding DBS checks spans several separate pieces of overlapping legislation. The situation is far from clear. In most cases the checks operate as an extra-judicial system. It is just taken for granted that a check is mandatory. No one either cares or knows whether or not this is really the case, in law. The aim of this article is to clarify what the law is.

(As a practical note: after a check the DBS form containing the information is sent to the person being checked. It is then up to the employer to require that it be produced. The form with the information from the check is not sent directly to the employer).

There are two main forms of the DBS, the Standard and the Enhanced.

Standard Checks 

The Standard includes the subject’s police record of Convictions, Cautions, Reprimands and Warnings including those which a subject would normally not have to disclose under the terms of the Rehabilitation of Offenders Act 1974.

Enhanced Checks

Police record of Convictions, Cautions, Reprimands and Warnings

Other relevant information disclosed at the discretion of the Chief Police Officer *

*   This can include for example information held on the Police National Computer

An Enhanced Certificate can also (if requested) include:

Information from the list under Section 142 of the Education Act 2002 (a list of people banned by the government from working with young people in educational settings)

DBS Childrens’ Barred List

DBS Adults’ Barred List

The source for the above is partly the author’s own recent Enhanced DBS form and also a government web page. [2]  The page in question [2] explains that information about the Barred Lists is optional and may only legally be requested in certain circumstances. A link to a page about the Barring Lists refers to the DBS Barring lists but makes no mention of the List held under Section 142 of the Education Act 2002 leaving it unclear when information about this list can be legally required. This lack of clarity is characteristic of much published government information on this topic.

The following is an attempt to clarify the law.

 

Information When is this Required by law? When does the law permit this information to be requested?
Criminal records information check The position must be included in the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975 [5] Examples of such roles include: anyone involved in a regulated activity (see glossary), anyone working in a Further Education college, a traffic warden.
Additional police intelligence check (‘enhanced’) The position must be included in the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975 AND Police Act 1997 (Criminal Records) regulations. The legislation appears to be in Section 115 of the Police Act 1997. [6]

Subsection 3 (of Section 115):

A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18

Subsection 4:

A position is within this subsection if—

(a)it is of a kind specified in regulations made by the Secretary of State, and

(b)it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over.

4) a) refers to regulations which can be made. We have asked the Home Office to clarify this.

Subsection 5: This refers to a range of other positions including those to do with gambling and foster parents.

Barring List information check It appears that it is not but it is an offence to employ someone who is barred in a regulated activity. (See glossary). It is also an offence to seek work in fields for which one is barred. This legislation is the Safeguarding Vulnerable Groups Act 2006 sections 7 and 9. [8] As above (both cases): and in addition the role must specifically be included as one for which this type of check can be made in the Police Act 1997
(Criminal Records) regulations as able to check the appropriate barred list(s). The applicable roles appear to be given in Section 113 of the Police Act 1997 subsection 3B which is referred to in Section 115 6A. Subsection 3B:

A position is within this subsection if it is—

(a)a child care position within the meaning of the Protection of Children Act 1999;

[F8(b)a position which involves work to which section 142 of the Education Act 2002 applies;]

(c)[F9a position such that the holder’s access to persons aged under 19 may be prohibited or restricted by regulations under subsection (6A) of that section; or]

(d)a position of such other description as may be prescribed;

A request to the Home Office for clarification has produced the answer that Barred List checks (again the lack of clarity on whether this includes the Section 142 list) can be carried out on someone applying to work in a ‘regulated activity’. See glossary. In effect this means anyone working with young people aged under 18.

Section 142 List (established under Education Act 2002) maintained by the Department of Education School Staffing Regulations 2012 It appears to relate to the appointment of school staff. See Schedule 2 in this document. School Staffing Regulations 2009. Part 1 Section of the School Staffing Regulations 2009 refers in turn to the Education Act 2002 Section 122 wherein a teacher is defined as someone working in primary or secondary education. (See also School Staffing Regulations 2012 which are those of 2009 with an amendment).

 

Being placed on the DBS Barred Lists

There is a legal requirement for employers to report staff to the DBS Service in certain circumstances. This government web page [3] explains that this is a mandatory reporting requirement in cases when a) an employee was sacked because they harmed someone, b) they were sacked or removed from working in a ‘regulated activity’ (see glossary) because they might have harmed someone and c) the person resigned in these circumstances when otherwise they would have been sacked. The legal basis for this is apparently in the Safeguarding Vulnerable Groups Act 2006. These provisions clearly give employers the power and the system is obviously open to be abused. A person who is being considered for inclusion on the DBS Barring Lists can make representations to the DBS System. This process is described here. [4] Placement on the DBS Lists can take place without any legal process. The decisions are made by people employed directly by or contracted by the government.

Glossary – regulated activity

Regulated Activity – This is defined in Schedule 4 of the Safeguarding Vulnerable Groups Act 2006 as amended by the Protection of Freedoms Act 2012. [7] This government document appears to summarise ‘regulated activity’. Essentially it means any work (or voluntary work) with children. The point about regulated activity is that it is work that a “barred person”, presumably someone on the DBS barred list, (and probably the Section 142 list?) “should not do”.

It is an offence for a barred person to seek work in fields for which they are barred (presumably regulated activity – and perhaps other fields as defined in the roles eligible for barring checks). It is also an offence for an employer to employ a barred person. The legislation for these provisions is given in the Safeguarding Vulnerable Groups Act 2006.

Freedom of Information requests

As part of researching this article I have made a number of Freedom of Information requests to the Home Office and the Department of Education as well as communicating with the (government) DBS Service. The text of these interactions is included here. Published here are the final texts which give clear information. I am not publishing the complete chain and requests for clarification etc.

FOI requests and responses from the Home Office

FOI requests and responses from the DBS Service

FOI response from the Department of Education concerning Section 142 List

The answers from the DBS Service and the Home Office appear to confirm what a review of the legislation suggests is the case. In general terms at least there is no primary legislation that mandates either Criminal Records checks (enhanced or standard) or a check of the Barring Lists. It is a question that certain roles are eligible for checks – see the table above for the relevant legislation. However; the responses clarify that there is statutory guidance issued to schools and colleges which says that other than in exceptional circumstances a full enhanced DBS check with Barred Lists information should be a part of the recruitment process for new staff. The guidance is issued under (Independent School Standards) Regulations 2014 and the Non-Maintained Special Schools (England) Regulations 2015. The guidance is published online.

The Home Office text also includes information about the process of being barred, right to obtain legal aid and right to appeal.

The response from the Department of Education says that it is “a statutory requirement” for schools and colleges to obtain an enhanced Criminal Records disclosure and Barred List information. This is very likely to be referring to the statutory guidance which the DBS and Home Office have mentioned. The Department for Education response also indicates that there does exist a mechanism for schools and colleges to obtain Barred List information directly via a portal called Teacher’s Pensions Online. The response indicates that this should be used in cases when a DBS Certificate with Barring information has been applied for but has not yet arrived.

Finally; the Department of Education’s response also indicates that there is further requirement on schools and colleges to check the Section 142 List held by the Department for Education under the Education Act 2002. This requirement is set out in the School Staffing Regulations 2012. Schools and Colleges can use a portal called Teacher Services system to do this. I have not gone into the detail in the law here but this does appear to relate to staff in maintained and non-maintained primary and secondary schools.

Additional point: the response (published above) from the Home Office refers to List 142 being “phased out” in favour of the DBS Childrens Barred List. However the Department of Education appears to be unaware of this and has said that schools must check List 142 with them – under the School Staffing Regulations 2012. Possibly there is one database behind the scenes and a check to List 142 made to the Department of Education will in effect check the children’s Barred List. An earlier response from the DBS which I have not published above appears to indicate that the DBS sends information to the Teacher’s Pension Online system on a daily basis. (This is not the same as the Teacher’s Services system mentioned in the response from the Department of Education above – but perhaps in practice there is one merged list shared by the DBS and Department of Education).

Discussion and Summary

It would appear that the whole DBS scheme is somewhat extra-judicial. In no cases is a check (police record, police record + police intelligence, or barred list information) mandatory in terms of primary legislation. The legislation creates roles which are ‘eligible’ for a check. Employers then choose to exercise this right to check. However; there is statutory guidance which effectively requires schools and colleges to carry out full enhanced criminal records checks and checks of the barring lists as part of their recruitment processes. There may be other statutory guidance which applies in other fields.

The DBS does not, at least routinely, provide a mechanism for employers to request Barred List information without at the same requesting an enhanced Criminal Records check. The logic of this is that if a check of the Barred Lists is permitted (“regulated activity”) then these roles will also encompass those for which an enhanced Criminal Records check is made. This creates a situation where in effect employers are encouraged to obtain a Criminal Records check automatically when applying for Barred List information. This is consistent with the statutory guidance referred to above. In effect this is a quasi-judicial scheme which depends on secondary legislation and bureaucratic mechanisms. However – the statutory guidance exists and the practice of issuing statutory guidance (secondary legislation) is well-established.

 

Notes

1. There are also illegal checks – when an organisation requires someone to complete a DBS check outside of the scope of the law. An example would be running a DBS check on someone hiring a hall. The DBS system is focussed on employers and staff/volunteers; in general someone hiring a hall would not require a DBS check at all. Such a check would therefore be illegal. Illegal checks are outside of the scope of this article.

2. https://www.gov.uk/disclosure-barring-service-check

3. https://www.gov.uk/disclosure-barring-service-check/dbs-barred-lists

4. https://www.gov.uk/government/publications/dbs-referral-guide-making-representations/dbs-barring-and-referrals-making-representations

5. This government document summarizes these roles. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/519060/Guide_to_eligibility_v8.1.pdf

6. http://www.legislation.gov.uk/ukpga/1997/50/section/115

7. http://www.legislation.gov.uk/ukpga/2006/47/schedule/4

8. http://www.legislation.gov.uk/ukpga/2006/47/contents

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